Altman v. Altman ( 2013 )

THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE
CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING
EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.
THE STATE OF SOUTH CAROLINA
In The Court of Appeals
James Edward Altman, Sr., Appellant/Respondent,
v.
Ann Tarascio Altman, Respondent/Appellant.
Appellate Case No. 2008-107646
Appeal From Newberry County
Joseph W. McGowan, III, Family Court Judge
W. Marsh Robertson, Family Court Judge
Unpublished Opinion No. 2013-UP-171
Heard April 1, 2013 – Filed April 24, 2013
AFFIRMED
James Edward Altman, Sr., pro se.
Thomas M. Neal, III, of Columbia, for
Respondent/Appellant.
PER CURIAM: This consolidated appeal arises from a final order of divorce and
from an order finding the parties' mediation agreement is not binding. On appeal,
Respondent/Appellant Ann Altman (Wife) argues the family court erred by finding
no binding agreement exists between the parties. Appellant/Respondent James
Altman (Husband) argues the family court erred by: (1) finding Husband's pension
is both a marital asset and income; (2) finding the 81-acre Peak Property is marital
property; (3) valuing the 8.57-acre Peak Property; (4) finding Husband did not seek
contribution from Wife for any debt in his name; (5) finding the Twisted Hill
property is nonmarital; (6) awarding the lake lot to Wife; (7) accepting Wife's
appraisal of the 8.57-acre Peak Property instead of Husband's appraisal; and (8)
equitably dividing the marital estate. We affirm pursuant to Rule 220(b), SCACR,
and the following authorities:
1. As to whether the family court erred by finding no binding mediation agreement
exists between the parties: Swentor v. Swentor, 336 S.C. 472, 482, 520 S.E.2d 330,
336 (Ct. App. 1999) (noting "family courts will refuse to approve agreements
under essentially the same circumstances that would render any other type of
contract unenforceable"); Davis v. Greenwood Sch. Dist. 50, 365 S.C. 629, 634,
620 S.E.2d 65, 67 (2005) ("In order for a contract to be valid and enforceable, the
parties must have a meeting of the minds as to all essential and material terms of
the agreement."); Rule 6(g), ADR Rules ("Upon the parties reaching an agreement,
the mediator shall provide a Memorandum of Agreement to the parties, attorneys
of record, and guardians ad litem of record. It is the obligation of the parties to
seek approval of the agreement by the family court.").
2. As to whether the family court erred by finding Husband's pension was both a
marital asset and income: Smith v. Smith, 308 S.C. 372, 375, 418 S.E.2d 314, 316
(Ct. App. 1991) ("[T]he two common methods of valuing pensions [ ] are: (1)
present cash value, and (2) distribution from each payment."); S.C. Code Ann. §
20-3-630 (B) (Supp. 2012) ("The court does not have jurisdiction or authority to
apportion nonmarital property."); Carroll v. Carroll, 309 S.C. 22, 27, 419 S.E.2d
801, 804 (Ct. App. 1992) (noting wife could not challenge court's valuation of
husband's pension plan where she failed to offer evidence to the contrary of
husband's expert's valuation); Murphy v. Murphy, 319 S.C. 324, 328, 461 S.E.2d
39, 41 (1995) (stating "the portion of a pension attributable to the period of time
that a spouse is employed before the marriage is non-marital property");
Smallwood v. Smallwood, 392 S.C. 574, 583, 709 S.E.2d 543, 548 (Ct. App. 2011)
("A party cannot use Rule 59(e) to present to the court an issue the party could
have raised prior to judgment but did not."); Pittman v. Pittman, 395 S.C. 209, 218,
717 S.E.2d 88, 92 (Ct. App. 2011) ("[A]n award of alimony rests within the sound
discretion of the family court and will not be disturbed absent an abuse of
discretion.").
3. As to whether the family court erred by finding the 81-acre Peak Property is
marital property: S.C. Code Ann. § 20-3-630(A) (Supp. 2012) (defining "marital
property" as "all real and personal property which has been acquired by the parties
during the marriage and which is owned as of the date of filing or commencement
of marital litigation").
4. As to whether the family court erred by accepting Wife's appraisal instead of
Husband's appraisal for the 81-acre Peak Property: Skipper v. Skipper, 290 S.C.
412, 414, 351 S.E.2d 153, 154 (1986) (stating absent an agreement between the
parties otherwise, the family court should divide property according to value);
Pirri v. Pirri, 369 S.C. 258, 264, 631 S.E.2d 279, 283 (Ct. App. 2006) (stating in
valuing marital assets, the "family court may accept the valuation of one party over
another, and the court's valuation of marital property will be affirmed if it is within
the range of evidence presented"); Fitzwater v. Fitzwater, 396 S.C. 361, 369, 721
S.E.2d 7, 11 (Ct. App. 2011) (noting the family court may use "any reasonable
means to divide the property equitably"); Smith v. Smith, 294 S.C. 194, 198, 363
S.E.2d 404, 407 (Ct. App. 1987) ("The weight that the trial court affords the
testimony of witnesses, including parties, is discretionary with the trial court.").
5. As to whether the family court erred by finding a $6,500 per acre price for the
8.57-acre Peak Property: Skipper, 290 S.C. at 414, 351 S.E.2d at 154 (stating
absent an agreement between the parties otherwise, the family court should divide
property according to value); Pirri, 369 S.C. at 264, 631 S.E.2d at 283 (stating in
valuing marital assets, the "family court may accept the valuation of one party over
another, and the court's valuation of marital property will be affirmed if it is within
the range of evidence presented"); Smith, 294 S.C. at 198, 363 S.E.2d at 407 ("The
weight that the trial court affords the testimony of witnesses, including parties, is
discretionary with the trial court.").
6. As to whether the family court erred by finding Husband did not seek
contribution from Wife for any debt in his name: Myers v. Myers, 391 S.C. 308,
313, 705 S.E.2d 86, 89 (Ct. App. 2011) ("In appeals from the family court, this
court may find facts in accordance with its own view of the preponderance of the
evidence."); id. at 317, 705 S.E.2d at 91 ("The division of marital property is
within the family court's discretion and will not be disturbed on appeal absent an
abuse of that discretion."); S.C. Code Ann. § 20-3-620(B)(13) (Supp. 2012)
(stating in apportioning marital property, the court must consider "liens and any
other encumbrances upon the marital property, which themselves must be
equitably divided, or upon the separate property of either of the parties, and any
other existing debts incurred by the parties or either of them during the course of
the marriage"); Kennedy v. Kennedy, 389 S.C. 494, 502, 699 S.E.2d 184, 188 (Ct.
App. 2010) ("Section 20-3-620(B)(13) creates a rebuttable presumption that a debt
of either spouse incurred prior to the beginning of marital litigation is a marital
debt and must be factored in the totality of equitable apportionment.").
7. As to whether the family court erred by finding the Twisted Hill property is
nonmarital property: Smallwood, 392 S.C. at 583, 709 S.E.2d at 548 ("A party
cannot use Rule 59(e) to present to the court an issue the party could have raised
prior to judgment but did not.").
8. As to whether the family court erred by awarding the lake lot to Wife: Myers,
391 S.C. at 313, 705 S.E.2d at 89 ("In appeals from the family court, this court
may find facts in accordance with its own view of the preponderance of the
evidence."); id. at 317, 705 S.E.2d at 91 ("The division of marital property is
within the family court's discretion and will not be disturbed on appeal absent an
abuse of that discretion."); Fitzwater, 396 S.C. at 369, 721 S.E.2d at 11 (noting the
family court may use "any reasonable means to divide the property equitably").
9. As to whether the family court erred by apportioning the marital estate: Reiss v.
Reiss, 392 S.C. 198, 211, 708 S.E.2d 799, 806 (Ct. App. 2011) ("The
apportionment of marital property will not be disturbed on appeal absent an abuse
of discretion."); S.C. Code Ann. § 20-3-620(B) (Supp. 2012) (providing fifteen
factors the family court is to consider in apportioning the marital estate, but also
affording the family court discretion to give such weight to each factor as it finds
appropriate); Fitzwater, 396 S.C. at 369, 721 S.E.2d at 11 ("On appeal, this court
looks to the overall fairness of the apportionment, and it is irrelevant that this court
might have weighed specific factors differently than the family court.").
AFFIRMED.
SHORT, THOMAS, and PIEPER, JJ., concur.